*1 A. Nos. In Dec. 3, Bank. [L. 1954.] ALBERTA SHORE, Respondent, ARCHIE B. MAE SHORE, Appellant.
(Two Cases.) *2 Appellant. & Alfred Siemon for Siemon Siemon and for Respondent. Howell Howell Kendall & and William A. brought B. TRAYNOR, J.Archie Shore these actions interest in certain establish title to an undivided one-half his property possession of defendant personal real and partition personal Alberta Shore and to secure a Mae In her consolidated trial. The actions were pleaded answers, that Archie’s actions were barred Alberta parties that Archie of annulment between the and property while given her his one-half interest had togethеr all living as husband and wife. Title to were parties taken originally had property that the annulment joint court found tenants. trial and that Archie had bar these actions decree was not a property Alberta. interest gift his not made Archie had deeded his further found that It from protect his interest to defendant real parties him against by third and unfounded claims oral for him. trust interest on Alberta held Archie’s relationship had existed between the Since confidential unfounded, against Archie were the claims parties and enforceable and entered was oral trust it concluded undivided each was the owner action for In the in the real one-half interest it entered partition personal property an undivided one-half parties owner of each of from appealed partition. Alberta has ordered judgments. Belying following facts, Alberta contends holding court еrred the decree in the annul- ment a bar to these action was not At actions. the time of the annulment action in title to the real her possession stood in name and she inwas of both the personal property. complaint real In her for divorce alleged she involved in this separate property prayed her action was that the court In his so determine. and cross-complaint answer for annul- ment, Archie was the jointly acquired property and prayed that equally it be divided between them. The trial court awarded ground an annulment Alberta on the that Archie had spouse living another time of his marriage to Alberta. also found that were in *3 the delicto, Court, therefore, “that makes no findings concerning the character of the set out in the first of action of complaint.” cause As a conclusion [Alberta’s] Court, of law it “That parties stated the in purported marriage, fault the declines for juris- lack of any diction make award property alleged of to be com- munity in character.” Alberta contends that foregoing the finding and conclu- binding adjudication sion constitute a that at the time of the annulment neither was entitled to against relief respect the other with question. the here in contends, Archie the hand, on other that a denial of relief of jurisdiction for lack does not judgment constitute a on the merits and that event no with re- spect was carried into the formal decree of annulment. property rights
When the parties of the are properly put pleadings in issue the in an annulment action, may (Figoni determine court them. v. Figoni, 211 Cal. 354, 339]; P. Schneider, 357 Schneider v. 183 335, [295 533, ; 11 Sanguinetti 342 A.L.R. see v. [191 1386] San 95, guinetti, 9 99 Cal.2d P.2d 342].) 111 A.L.R. [69 purported marriage
If the was not entered into in 680
good may properly faith, however, the court not award marriage if had been vаlid (Vallera Val property community in character. v. Crook, lera, ; 21 P.2d Baskett v. Cal.2d 684-685 [134 Taylor Taylor, 86 v. 66 Cal.App.2d 355, 362 P.2d 39] [195 When de Cal.App.2d 390, 480].) P.2d [152 cision of court viewed more light rules, it constituted it is these clear jurisdiction. It was also a than a on the issue of decision prop of Archie’s claim that .the dеtermination on the merits jointly erty equally divided should be merely not acquired property parties. did to award decide that lacked neither parties were in decided that because the respect their legal of them assistance was entitled annul Accordingly, when the propеrty interests. fact and light findings interpreted ment Court, Superior (see Vernon v. City of law conclusions O’Haver, 243]; P.2d Gelfand clear it was 790]), 218, 222 33 Cal.2d claims tantamount dismissal The situa property interests. to their Hopkins, analogous in Olwell closely to that tion is thus held where it appeared dismissal when judgment of was res а determination that dismissal was based recognized The court upon was void. contract sued not “Ordinarily a of dismissal is operate as a bar to another the merits and therefore does recog This on the same cause of action. court has may however, follow actual deter nized, a dismissal the merits as have courts in other mination [citations] motion dis hearing At the jurisdictions. ... in evidence action, defendants introduced miss the record It is clear from that the first action. the record of dismissing upon by the trial court passed issue the one contention that raised defеndants’ the first action was *4 upon of action was based plaintiff’s cause contract interposed defense thus was void. The went to the . cause of action. . . plaintiffs’ raised merits [Defendants] right to plaintiffs’ to recover under cir an issue upon cause of action upon their cumstances judgment against plaintiffs.” rendered issue the court (28 Cal.2d 149-150.) [4] The reasoning in the Olwell equally applicable here, accordingly case is we conclude although refusing to determine an issue ground ordinarily of lack of judicata (Slaker Co., McCormick-Saeltzer Coker, see also Stаrk jurisdic- 390]), 843-844 when decision tional is based a determination of the merits of an court, issue before the deter- constitutes a mination of that issue. present
In the actions Archie is not seeking to establish property growing interest out relationship. marital He relies on evidence acquisition рarties’ dealings and the therewith that the trial court found sufficient to estab lish his claim a one-half interest without reference relationship. pointed As was out in Vallera v. Vallera, supra, 21 681, 685, the fact that man and do in good woman not faith believe are married does preclude not protecting the court from in jointly terests in acquired property. Accordingly if Archie theory recovery advanced he now relies in the action, annulment the court in holding erred the fact in pari were prevented Al relief. though appear sought does that Archie to establish his interеst in the in the annulment action on the theory advanced, now not, whether he did these actions adjudication. are barred He now seeks establish right the same in the property sought that he to establish action, the annulment and the decision in that action went to the merits his claim. If the court еrroneously applied of pari doctrine deny delicto to relief on theory now advanced, Archie’s remedy by appeal. On the other hand, if Archie failed n present- theory of recovery in the former action, it is too late for him to do so now. The situation legally indistinguishable from Krier v. Krier, Cal.2d 841 where a sought wife in succes sive actions establish an the same legal different “In prior separate theories. maintenance sought Krier procured adjudication Mrs. respect to her in She here seeks a second relative to her interest in the same settled, however, prior action between the same on the identical *5 to a judicata, and a bar second suit action is res cause of actually therein only determined thereon, as to issues necessarily involved. also but issues [Citations.] different, of be though action And the cause even subsеquent in conclusive a prior issue is determination of an every issue parties as to suit between the same or its defeat might urged to sustain matter which have been determination. [Citations.] solely “Having prior claimed the action community having procured a such, pre- therein on its charаcter as Mrs. Krier is based seeking in this cluded from later action award another entirely (homestead on an thereof based different existing, unclaimed, but otherwise) or at the time re- adjudication. Under the circumstances she was earlier community quired interest, her entire whether advancе permit in make homestead, both, or or order to court to complete adjudication of effective and having parties. so, Not interests of done [Citation.] relitigate matter, whether it be she cannot held that same of action insofar as two suits involved the cause merely in her involved concerned (28 in property.” as to her interest a common issue 843-844.) Cal.2d at judgments are reversed. Edmonds, J., J., Spence, J., concurred.
Gibson, C. dissent. CARTER, J.I finding agree of trial court
I do not brought Alberta to effect that “the action findings concerning the makes no character Court, therefore, of in the first cause property set out [Al- of law “the complaint” and the conclusion berta’s] mar- finding fault' Court, any jurisdiction make award riage, declines for lack character,” alleged con- be issue so as determination stituted my was, actions. a bar to the constitute had not been the issue specific declaration that opinion, adjudicated. of an action no doubt that the dismissal
“There can relief for want or denial prevent plaintiff from sub merits, and cannot
sequently prosecuting his
Court
authorized
to entertain and determine it. No
other than the
jurisdictional
one is concluded
such a
judgment,
jurisdiction, any
after the Court
has determined its lack
further
wholly
as to the matters
pass
particular
. . . Refusal
ineffective.
matter
(Freeman
lack of
is not an
of it.”
*6
on Judgments,
ed.,
p. 1546,
(In
5th
2,
vol.
Slaker v.
§
179
Co.,
McCormick-Saeltzer
Cal.
389
P.
this
[177
“Looking merely
court said:
in the fore
suit,
very
closure
plain
it is
the court did
not therein
pass
controversy
to
undertake
merits of the
between
Company.
Slaker and the McCormick-Saeltzer
What
it did
was to
decline
controversy,
determine that
the reason
for
was without
in that
jurisdiction,
action, so to do.
holding
Whether
had no
was sound
a question
erroneous is not
consideration here. The
for
point
adjudication
essential
is
there was no
merits.
(Emphasis
...”
added.)
is elemental
judgment which has
rendered
the merits is not
(Campanella
Campanella,
v.
What saying is, is in effect, this: When the court determined it had no to decide the question reаlly it was a determination on the merits that neither was to relief entitled and therefore “tantamount to a dismissal of the claims of the interests.” The trial specifically no made character of the inAs case, Slaker it declined to determine controversy for the reason that it felt it was without jurisdiction. jurisdic- “Whether holding it had no tion was sound erroneous is not consideration point essential there was no here. reached
on merits. In order to reach the conclusion ...” many First majority, “ifs” are involved. too theory recovery” now relied said Archie advanced the “if holding pari delicto on, the court the doctrine erred prevented “if” is discarded with relief. Then that appear that Archie” did seek statement “it does not Secondly, theory now advanced. establish his erroneously it is in the annulment said the court “if deny relief on the applied the doctrine remedy appeal.” theory now Archie’s advanced, Archie failed to hand, Then it is “On the other said: if action, the former present recovery in theory set forth The rule for him to now.” too late do so applicable 681], is not Krier, Krier v. Cal.2d 841 [172 issue, pass specifically here. When court declines necessarily involved directly, or the rule as to issues involved by implication, apply. does not
Before the trial court could reach conclusion re respective property involved, spect to the interests it had first the character of the This it did to determine That nо determination was fact made is borne not do. language by the used conclusion of law wherein out concerning “alleged” community made char comment is *7 property. As said in v. Coker, acter of the we Stark 390], “While is true that as only a bar as res general rule a is determined, actually subsеquent on the same matter to a litigated might all issues that have been but as to also essentially subject connected with the or matter incident to every coming legitimate matter within its litigation and §§1908, 1911; 15 Cal.Jur. 142 (Code Proc., purview Civ. only adjudged a former is is also true that that seq.), it et adjudged appeаrs upon its face to have judgment which necessarily actually included therein which 1911.) (Code Proc., And when necessary Civ. thereto. § by appears an issue was not determined affirmatively judicata upon that issue. obviously is not res judgment, it the which as matters A (Watson Poore, determining. expressly refrains from 150.)” (Emphasis ; 15 Cal.Jur. 18 Cal.2d added.) no de- specific
If we were not faced with to the character made as termination was might be entitled opinion majority position taken credibility. just I to more The rule have set forth as stated recognized by is majority, the Slaker case but never- the cоnclusion is reached theless, the decision of the jurisdictional question trial court on was based determination of the “of an court, merits issue before the binding constitutes a determination that issue.” It seems inescapable to me be before court could make determination of thе issue based on merits, must, first, determine whether it had determination, expressly make such but it had held that it no determine such issue and refused to de- it. termine my majority opinion clearly view that the in con
flict set on Judgments rule forth in Freeman (supra) Co., supra, Slaker v. McCormick-Saeltzer as well as supra. Coker, Stark majority The rule announced in the opinion judicata beyond extends doctrine of in its scope majority concludes, tended of this court there in the face of a clear statement trial court contrary, finally that an issue was so determined as to con stitute a bar logiсal to a second action. The result of majority conclusion reached to deprive plaintiff day such his court. I affirm judgments. would
Shenk, J., Schauer, J., concurred. Respondent’s petition rehearing for a was denied De- cember Shenk, J., Carter, J., and Schauer, J., were opinion petition granted. that the should